Mon, Nov 20, 2006 page8

• The legality of the state affairs fund

  • By Liu Wen-shi 劉文仕
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  An examination of the indictment brought against first lady Wu Shu-jen (吳淑珍) reveals a major blind spot regarding the laws that regulate the use, verification and reimbursement of the president's "state affairs fund."

  From a legal standpoint, if the law says that receipts must be submitted to verify and write off an item, then even if only one receipt is found to be false, it could still be considered a criminal act. If, on the other hand, the law does not require receipts, but only requires that the money was spent on specified items, it doesn't matter how many receipts there are. In this case, it would be necessary to decide whether the budget and accounting procedure is flawed, but it would not constitute a crime.

  This means that the key to this case is what the law demands of the president. This is also the point that society hopes the courts will clarify. However, all we have heard are suspicions surrounding one receipt, or where another receipt ended up.

  The indictment is an impressive 30,000 characters in length, but only a little more than 100 or so address this issue.

  Moreover, the only basis referred to is the Management Guidelines for The Disposal of Expenditure Vouchers (支出憑證處理要點). No law is cited, nor is any jurisprudential explanation given. Indeed, in this "legal" document with such a serious impact on the reputation on a head of state, we do not even see the word "law."

  The predecessor to the management guidelines -- rules for certification of expenditure vouchers (支出憑證證明規則) -- was established by the Ministry of Audit in 1989 based on the Audit Law (審計法).

  In 2002, however, authority was transferred to the Directorate-General of Budget, Accounting and Statistics (DGBAS), which replaced the rules with the management guidelines that were merely a set of administrative regulations. Not only did this document lack legal authority, but the method by which a budget should be compiled, and how expenses should be verified and written off, was left entirely to the discretion of the DGBAS.

  In this case, the basis for the state's right punish improper use of the fund is a procedure that allows budget and accounting officials to make changes and adjustments with little notice.

  Leaving aside the issue of whether this infringes on the basic principle that delegated authority should have a clearly defined source, even if the guidelines were to be considered a link in the accounting system mentioned in the Accounting Law (會計法), and even if we look at item three in the management guidelines, which say that "[the person] applying for expense reimbursement should ... vouch for the truthfulness of the actual expenditure," the guidelines do not restrict reimbursements on the basis of invoices alone.

  Any receipt or document received as proof of an expense is acceptable. In particular, the guidelines' statement of purpose indicates that they are concerned with substance and not with form. In other words, the actual existence of vouchers is what is important, and not the kind of voucher. This is also the viewpoint expressed in the indictment.

  The question is about which expenses require original receipts and what information they should contain. The president's state affairs fund should not be treated differently from funds handled by other officials.

  Based on the debates over the Office of the President Organization Act (總統府組織法) and its budget, I surmise that this is related to the position of the president as delineated by the Constitution.

  The presidency is both a constitutional body and a position. As an institution, the presidency is separate from the Presidential Office, but as a position, it is the reason for that office's existence.

  The budget items needed for the presidency as an institution to help the president fulfill his duties are allocated to the Presidential Office. This means that the original proof submitted for verification of presidential expenditures could consist of souvenirs bought for the president by the office's administrative staff, as well as direct gifts from the president. For the former, the issue of receipts would arise, while for the latter, the proof of expenditure would be the president's claim form.

  Based on the elevated position of the president and the special character of his or her expenditures, the use of presidential funds is handled on a basis of sincerity and trust. Unless the expenditures are governed by specific laws or fall under what Constitutional Interpretation No. 391 by the Council of Grand Justices referred to as a "law of measures," any administrative regulation or practical measure that regards the use of a "claim form" from the president as insufficient, and which assumes that a lack of receipts for expenditures is a violation of the guidelines, is the result of misreading the president's constitutional position.

  Liu Wen-shi is an adviser of the Ministry of the Interior and executive secretary of the ministry's Laws and Regulations Committee.

  Translated by Marc Langer and Perry Svensson
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